Can An Agency Extend Response to a CPRA Request Up to Eight Weeks Due to Covid?

Answer

Although the agency has a right to a 14-day extension of the usual 10-day response period for a California Public Records Act (“CPRA”) request, we do not think the estimated eight-week deadline complies with the CPRA.SeeCal. Gov’t Code § 6253(c) (“Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. In unusual circumstances, the time limit prescribed in this section may be extended by written notice by the head of the agency or their designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available.”)

In response to the COVID-19 pandemic, some government agencies in California have stopped processing requests made under the CPRA. The First Amendment Coalition takes the position that there is no legal basis for that extraordinary step. The California Public Records Act remains the law of the land, and Article I, section 3(b)(1) of the California Constitution provides that, “[t]he people have a right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

You can learn more about the First Amendment Coalition’s efforts to promote government transparency despite Covid-19 here on this website, which includes a letter dated March 23, 2020 in which the First Amendment Coalition urges compliance with the CPRA amid the Covid-19 crisis. In the letter the First Amendment Coalition states: “[w]e recognize and understand the difficult choices that government agencies must make right now. Delayed responses to Public Records Act requests may be inevitable. But agencies have an obligation to take all reasonable measures to preserve and effectuate the rights of Californians to understand their government – rights which our Legislature has recognized are ‘fundamental’ and ‘necessary’ and our Supreme Court has held are ‘essential to the functioning of a democracy.’ . . . Moreover, the Governor’s recent emergency orders do not waive any of the California Public Records Act’s requirements.”

While we cannot provide you with legal advice, we recommend that you send a letter to the agency to reiterate your request under the CPRA and indicate that the estimated eight-week deadline violates the CPRA.SeeCal. Gov’t Code § 6253(c) (“Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. In unusual circumstances, the time limit prescribed in this section may be extended by written notice by the head of the agency or their designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available.”)

You can further mention that if you do not receive the requested records much sooner, you will file a lawsuit and seek to recover your costs and attorney’s fees. “Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter.” Cal. Gov’t Code § 6258. “The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to [the California Public Records Act (Gov. Code, §§ 6250 et seq.)] . . . An award of costs and attorney fees pursuant to this provision is mandatory if the plaintiff prevails.”Filarsky v. Superior Court, 28 Cal. 4th 419, 427 (2002).

Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.